The Kenya-ICC Standoff

Uhuru Muigai Kenyatta’s election as the president of Kenya, despite several allegations made by the opposition, is important both with respect to the Kenyan internal politics and the larger implications for the legal regime of the International Criminal Court (ICC). The ICC had accused Kenyetta and others including his political foe turned running mate, William Ruto, of stoking the worst violence in Kenya’s history after the December 2007 Kenyan elections.

The post election violence stopped only after Odinga, the opposition leader who lost, and Mwai Kibaki, the incumbent and victorious leader, agreed to form a coalition government. Kenyatta, who was appointed as the deputy prime minister in that coalition, had supported Kibaki in the 2007 elections. Both Kenyetta and Kibaki belong to the Kikuyu tribe that constitutes about 20 per cent of the population of Kenya. The opposition lead by Raila Amollo Odinga was perceptibly supported by the Kalenjin, Luo and the Luhya ethnicities. Odinga was leading by approximately a million votes towards the end of the counting but the result unexpectedly turned in favour of Kibaki in the last few hours which the supporters of Odinga believe was the result of a large scale fraud by Kibaki and his supporters. Odinga’s supporters turned violent and attacked Kikuyu tribe members after the declaration of the result. This was followed by an alleged organised retaliation by the Kikuyus led by Uhuru and his colleagues. The violence perpetrated by both sides had reportedly left more than 1,200 people dead and around 300,000 displaced.

There was a furious debate within Kenya prior to the March 4, 2013 presidential elections, over the candidature of Uhuru, an ICC accused, whether it was appropriate for him to contest an election for the highest seat in the country. But apparently his candidature for presidency was cleared by Kenya’s Independent Electoral and Boundaries Commission (IEBC) and the High Court. His election was closely monitored by the United States (US), the United Kingdom (UK), the European Union (EU), African Union (AU) and some other international bodies. Uhuru officially won the election, avoiding a run-off by just 8,100 votes, and crossed the 50 per cent mark just by 4,100 votes. The opposition leader Odinga, citing several technical factors, accused the administration of rigging the elections. However, the independent election observers from the African Union (AU) and the Commonwealth deemed the election to be fair. The African Union Election Observer Mission held that “the elections were conducted in a peaceful, transparent and credible manner, giving voters opportunity for free expression.”1 The Commonwealth Observer Group commented that “Overall, the IEBC (Independent Electoral and Boundaries Commission) managed preparations in a transparent and effective manner.”2 The victory was upheld by the Kenyan Supreme Court, which also characterised the polls as free and fair.

Despite the ICC indictment, Kenyatta was inaugurated as the President of Kenya on April 9, 2013 in the presence of many regional and world leaders including the presidents of Uganda, South Africa, Nigeria, Burundi, Rwanda, South Sudan and Tanzania. Hailemariam Desalegn, prime minister of Ethiopia and the current chair of the African Union and IGAD, Joe Biden, the US vice president and the former UN General Secretary Kofi Annan were also present. It is to be noted that the AU members in general have welcomed the election. The AU had earlier passed a resolution asking the ICC to dismiss the case against Kenyatta and remit it to the courts in Nairobi.

Progress on the Kenyan case

Since its initiation in December 2010, the case has seen several twists and turns. It is special because it is the first time that the ICC Prosecutor has resorted to its proprio motu powers under Article 15(3) of the Rome Statute. It means that the Prosecutor may initiate an investigation within the jurisdiction of the ICC even without a referral of a case from the UN Security Council or a state party to the Statute. The ICC – designed to prosecute those responsible for genocide, crimes against humanity and war crimes committed anywhere in world – started working as a court of the last resort in 2002 according to the Rome Statute of 1998.3 The court intervenes only in cases where the national judicial system and authorities cannot or do not intend to prosecute the perpetrators of such crimes. After the permission was granted by of the pre-trial chamber, the ICC registered two cases from Kenya and summoned six individuals (William Samoei Ruto, Joshua Arap Sang, Henry Kiprono Kosgey, Uhuru Muigai Kenyatta, Hussein Ali and Francis Kirimi Muthaura) on March 8, 2011. The Pre-Trial Chamber II later confirmed charges against Ruto, Sang, Kenyatta and Muthaura and rejected the charges against Kosgey and Ali on January 23, 2013 for lack of a threshold of evidence required to try them. Later, on March 11, 2013 the charges against Muthaura were also dropped due to insufficient evidence, particularly because of a witness had recanted. Currently, in the first case, Ruto is to face trial for indirect co-operation in crimes against humanity and murder while Sang will face the same for the commission of crime. In case two, only Kenyatta stands to face trial on charges of crimes against humanity – murder, deportation or forcible transfer, and persecution. The accused leaders have tried to shift the trials from the ICC to courts in either Nairobi or Arusha since the confirmation of the charges, but without any success.

Ruto and Uhuru, who were earlier in opposite camps at the time of the violence for which they are being tried, came together to form a “Jublee Alliance”. Ruto contested and campaigned with Kenyatta as his running mate. They have been successfully able to get their trials postponed, allegedly buying time to manipulate circumstances in their favour. They also successfully used the public statement by Johnnie Carson, the head of the Africa Division of the US State Department, warning of “consequences” if the Kenyans voted for Kenyatta and Ruto. It helped them raise pan-African sentiments in favour of their election to the highest office and against the ICC as well.

Implications

The Rome Statute of the International Criminal Court has been ratified and acceded by 122 countries including 34 African states. The ICC was considered as a successful step towards an international judicial regime. But the court is facing an existential crisis for political reasons. The case of Kenyatta and Ruto starkly highlight the contradictions in the aspirations for a global rule of law and local and regional political realities. The Chief Prosecutor of the ICC is trying to bring the accused to justice but their political profile and legitimisation by their election as the president and vice president of the country respectively, have served to negate these efforts. Uhuru and Ruto are not the only politicians who are heads of state despite being charged by the ICC but Omar al-Bashir, the president of Sudan, is also facing a standing arrest warrant by the court.

The African leaders allege (which may not be baseless as the West has a long record of discriminatory policies) that the prosecution of the Kenyan leaders is a result of Western neocolonial and racial policies. The leaders of Africa are looking at the matter in terms of the dichotomy of ‘West vs Africa’. President Yoweri Museveni of Uganda expressed this sentiment by characterising the scheduled ICC trials of the Kenyan leaders as “blackmail”. He alleged, without naming any country, that some arrogant actors singing their careless analysis have distorted the purpose of that institution. He also claimed that some countries are using the ICC “to install leaders of their choice.”

Kenya, however, is too important a country in Eastern Africa to be overlooked due to its influence, resources, economic prospects and indispensable role in Somalia. The West also does not want to see the country coming under the Chinese influence because of the void created by the non-cooperation and pressures on the leaders of the country to face ICC trials. The African Union had come to the rescue of these leaders by passing a resolution asking its members not to cooperate with the ICC with regard to these cases. Now, the recognition of the Uhuru government by regional and important world powers due to political interests has hampered the trial process.

The Kenyan ICC cases have raised some pertinent questions on the dream for a global justice system. The most pertinent are: What is the use of the ICC if it cannot even bring an accused before it? How to put the high profile and powerful criminals on trial? How to have its summons, warrants and decisions implemented? Though Uhuru and Ruto have promised to cooperate with the court, the series of events before the beginning of the trials have already raised questions about its efficacy and utility. Sovereignty is still the essential and supreme value for nation-states and they do not want to lose it to any supranational legal institution. Though the US and Russia have signed the statute they have not ratified it. Some of the important countries like India and China, along with a number of others are still outside the jurisdiction of the ICC as they have not even signed the statute. Any credible global judicial system cannot work without the sincere support and participation of the major military and economic powers.

Kenyatta and Ruto have been elected and sworn into office but not without a set of many questionable events in their favour. Though they have promised to work for ‘all Kenyans’, still the fact remains that a large number of civilians were killed and displaced during the 2007-08 post election violence, and they are still far from getting justice. The Kenyan government did not even identify the perpetrators while the ICC has taken an initiative that has turned into a controversy. As of now it remains to be seen that who will bring justice to the families of the dead and displaced; the ICC or the same people who are supposed to be the stakeholders in the violence against them. Whatever be the case, the standoff has raised real questions of justice.

• 1. “Observers say that Kenyan election was credible”, Business Daily, March 6, 2013, at http://
  www.businessdailyafrica.com/Observers+say+Kenyan+election+was+credible/-…
  /index.html
• 2. Ibid.
• 3. The text of the Rome Statute was circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procèsverbaux
  of 10 November 1998; 12 July 1999; 30 November 1999; 8 May 2000; 17 January 2001 and 16 January 2002.
  The Statute entered into force on 1 July 2002.